Synopsis The S.S. BROTHERS was hauling in the scallop rake in good weather conditions. Two deck-hands were positioned, one at the winch controls and the other to guide the incoming wire onto the winch barrel. No guard was fitted to the winch. Once the hauling process had started, the deck-hand at the winch controls left the controls unattended to begin the task of washing down the deck in preparation for the return to Yarmouth. When the deck-hand who was engaged in guiding the incoming wire saw the 25-fathom warning mark on the wire, he left his post and attempted to climb over the winch to reach the controls. He slipped and fell to the deck. His right leg was drawn into the winch and crushed between the incoming wire and the winch barrel. The Board determined that the accident was caused by the deck-hand attempting to step over the winch to gain access to the controls. Factors contributing to the accident were: the deck winch was uninspected and not fitted with a machinery guard; the deck-hand was operating the winch alone; the deck and the surfaces of the winch were slippery. It is also likely that the deck-hand's ability to make a reasoned decision on the safe operation of the winch was adversely affected by fatigue caused by his work/rest schedule. 1.0 Factual Information 1.1 Particulars of the Vessel 1.1.1 Description of the Vessel The S.S. BROTHERS is a traditional east coast, Cape-Island style, wooden-hulled vessel with the wheel-house and accommodation forward and the work deck aft, above the hold. The dump table is located on the starboard side of the vessel and the winch is located at the forward end of the work deck. A covered shucking house extends along the port side of the work deck and houses the winch control station at the forward end. 1.2 History of the Voyage On 08 October 1996, the vessel was hauling in the scallop rake for the last time before returning to Yarmouth. Winds were southerly at about five knots with a low swell. The vessel was neither rolling nor pitching and there was no snag on the wire. At the commencement of the haul, one deck-hand (deck-hand No. 1) was positioned inboard of the winch to guide the wire onto the winch barrel while another deck-hand (deck-handNo. 2) was positioned outboard of the winch to operate the winch controls. The skipper was on the bridge navigating the vessel and the mate was resting in his bunk. Once the hauling process had started, deck-hand No. 2 left the winch controls unattended to begin washing down the deck in preparation for the return to Yarmouth. Deck-hand No. 1 continued to guide the wire on to the winch drum until, at about 0730,[3] he saw the 25-fathom warning mark on it. At that point, he decided to climb over the after end of the winch to handle the controls; he neither went around the winch to gain access to the controls nor did he call out to deck-hand No. 2 to return to the controls. He put his left foot on the after barrel shaft bearing housing in the vicinity of the grease nipple and when his weight came on the housing, his left foot slipped and he fell to the deck. His right foot was drawn into the winch and caught between the incoming wire and the turns already on the winch barrel. As his foot was being dragged on to the winch barrel, he called out to the deck-handNo.2 who immediately returned to the controls and stopped the winch. The skipper, hearing a commotion on the after-deck, left the bridge and assisted the injured deck-hand as the winch was being reversed. After a quick assessment of the deck-hand's injuries, he returned to the bridge and at about 0745, called Yarmouth Marine Communications and Traffic Services Centre (MCTS) to request assistance. After receiving medical advice, the injured deck-hand was carefully moved out of the way of the winch and the scallop rake was recovered. The vessel then headed back to Yarmouth, approximately 15 miles away. During the return voyage, communications were maintained between the vessel, Yarmouth MCTS Centre and the hospital in Halifax. At about 1000, the vessel secured at Yarmouth and the injured deck-hand was removed from the vessel. He was transported by ambulance to a local hospital, stabilized and then transferred by air ambulance to a hospital in Halifax. 1.3 Fishing Equipment and Operation 1.3.1 Description of the Winch The winch, used to raise and lower the scallop rake, is located on the port side of the after-deck, angled slightly forward. One end of the warp is secured to the rake and the other end to the winch. The warp is led through a single roller fairlead situated forward of the winch on the starboard side. The controls are located on the outboard forward end of the winch, above the hydraulic motor. The winch is not fitted with an automatic spooling system. Instead, a round steel bar, stepped in one of seven holes in a plate attached to the winch bed plate, is used to manually guide the incoming wire in even layers on to the barrel of the winch. When not in use, the bar is retained in the aftermost of the holes in the plate and secured by a ring attached to the shucking house forward, inboard bulkhead. 1.3.2 Winch Operation Procedure and Shipboard Practice The winch was fitted with neither winch guards nor a spooling mechanism. It requires a minimum of two persons to operate safely, with one person at the controls and a second spooling the wire onto the drum. The general practice on board the vessel was to have a two-person operation when the scallop rake was hauled in, as described in Section 1.2. For this operation, both persons need to remain at their stations until the task is completed. However, there were occasions when the operation was carried out by one person. Also, deck-hands, including the one who was injured, have in the past climbed over the winch to gain access to the controls when they were in a hurry. 1.3.3 Winch Operation and Safety Safe winch operation has been an ongoing concern for Transport Canada Marine Safety (TCMS). Over the years a number of initiatives have been taken, including the issuing of Ship Safety Bulletins and distribution of the publication Manual of Safety and Health for Fishermen. This manual suggests that all winches should be properly guarded (Section6.2.1), that operating instructions be posted close to the controls (Section6.2.10) and that winch operators should not leave winches unattended with power on or with load suspended (Section 6.2.15). 1.4 Work Schedule and Work Environment 1.4.1 Work/Rest Schedule The vessel departed Yarmouth on 05 October 1996 at approximately 0040, with a crew of four. Throughout the trip the crew worked a nine-hours-on, three-hours-off schedule. During the three-hour period the crew was off-duty, they were expected to have their meals, attend to personal needs and sleep. The scheduled off-duty periods for deck-hand No.2 were 2100-2400 and 0900-1200. He began work at 0000 on the day of the occurrence and had been working for approximately seven and a half hours at the time of the accident. The scheduled off-duty periods for deck-hand No. 1 were 0000-0300 and 1200-1500. He began work at 0300 on the day of the occurrence and had been working for approximately four and a half hours at the time of the accident. The accident occurred after three days of working a rotating cycle of nine hours on and three hours off. As such, the crew's normal circadian rhythm was disrupted and a sleep debt would have been accumulating--particularly as time off could not be completely dedicated to sleep. 1.4.2 Sleeping Accommodation The sleeping accommodation was located in the cuddy in the fore part of the vessel, below main deck level. A glass skylight provided an emergency exit from the accommodation to the main deck. A wooden bulkhead separated the accommodation from the engine-room, with some engine noise filtering into the accommodation. 1.5 Fatigue Fatigue[4] may be described as a physiological state characterized by impaired performance and diminished alertness. Two well-documented causes of fatigue are inadequate sleep (quantity or quality) and disruption of circadian rhythm. Lack of sleep, poor-quality sleep and circadian disruption can result from irregular work schedules. 1.5.1 Performance Degradation as a Result of Fatigue Performance degradation as a result of fatigue manifests itself in many ways, including falling asleep against the will of the individual (micro-sleeps), failure to respond, slowed reactions (physical reaction and the speed of thought processes), incorrect actions, flawed logic and judgement, increases in false responses, increases in memory errors, vigilance decrement, reduced motivation, laxity and an increased propensity for risk taking.[5] 1.6 Injuries to Persons 1.7 Vessel Certification--Fishing Vessels 1.7.1 Ship Inspection Requirement and Safety TCMS, pursuant to the Canada Shipping Act (CSA), is responsible for the overall safety of fishing vessels and inspection certificates are issued for vessels over 15 gross tons. The S.S.BROTHERS was in possession of a valid ship inspection certificate SIC29 due to expire on 18September 1998. The winch, which formed part of the vessel's work deck space, was not inspected; according to TCMS, fishing equipment (such as winches) is not subject to inspection nor do regulations require that it be inspected. 1.7.2 Canada Shipping Act Regulations and Fishing Operations Two regulations, the Safe Working Practices Regulations (SWPR) and the Tackle Regulations, made pursuant to the CSA, cover issues with respect to the work deck space and loading/discharging equipment aboard vessels. The Tackle Regulations do not apply to fishing vessels. However, section 3 of the SWPR states that: These regulations apply to and in respect of the employment of persons in any working area associated with a ship in Canada or any Canadian ship outside Canada. The moving parts of the machinery of power-operated equipment shall be fitted with winch guards . . . TCMS provides guidance to Marine Surveyors for regulatory enforcement by way of Notices To Surveyors (NTS). NTS No. X-32 entitled Fatal Accidents Involving Winches and Warping Drums highlights the high incidence of fatalities where seamen have become entrapped in the winches/warping drums. It makes specific reference to section(s.) 20 of the SWPR and goes on to state that marine surveyors, when inspecting fishing vessels, should pay special attention to the safety of work areas where winches, warping drums, leads, and warping wires are involved. 1.7.3 Transport Canada Marine Safety Position--Interpretation and Application of Regulations It is the position of TCMS that: the CSA and the regulations made pursuant thereto do not apply to the the business of commercial fishing or to specific working areas associated with fishing operations; the machinery and deck work areas associated with fishing operations fall within the exclusive competency of the provinces and as such are subject to provincial jurisdiction; with the exception of work deck areas associated with fishing operations, all other areas of the vessel are subject to the regulations under the CSA, including the SWPR to ensure operational and structural safety of the vessel; notwithstanding the above, when Marine Surveyors conduct inspections of fishing vessels and deficiencies in the aforementioned work deck areas are observed, owners and operators are strongly encouraged to comply with the recommendations contained in the NTS X-32. Reportedly, this information is passed verbally to the owners/operators and no written record is maintained. In this instance, the vessel had been in service for some 15 years, during which period she underwent four TCMS inspections. The written records of these inspections mention neither the work space areas nor the equipment used in the business of fishing and TSB investigators were unable to determine if deficiencies in this area were discovered or discussed orally. It is known that the vessel operated the scallop rake winch, which was not fitted with a winch guard, during this period. 1.8 Jurisdictional Issues and Safety 1.8.1 Canada Shipping Act and Canada Labour Code Application Traditionally, the SWPR made pursuant to the CSA was the primary legislation governing factors which affected safety in the marine workplace for all ships in Canadian waters and Canadian ships in any waters. However, with the advent in 1987 of the Marine Occupational Safety and Health Regulations (MOSH) made pursuant to the Canada Labour Code (CLC) [under Labour Canada, now Human Resources Development Canada (HRDC)], the application of PartII of the CLC was extended to include ships where the working activity aboard the ship is federally regulated and where an employer-employee relationship exists. The administration of Part II of the CLC aboard ships has been transferred to TCMS. Recent Labour Relations Board and court rulings on the issue of union certification have ruled that the federal legislation is restricted to the protection and preservation of fisheries as a public resource and does not extend to the regulation of the business of fishing.[6] Furthermore, provincial labour relations legislation applies to commercial fishing vessels, since the regulations of employment do not advance the protection and preservation of fisheries. According to the B.C. Court of Appeal ruling, the fact that some fishing may be conducted outside of the territorial waters of Canada does not render inapplicable provincial laws, regulations, and terms and conditions of employment. [Also,] the Canada Shipping Act.... provides for cases in which a seaman is to be paid by a share of the profits of an adventure. By definition, such a share of profits is wages. So the seaman who is paid a share of the profits remains an employee.[7] The position of the Labour Division of HRDC is that federal labour legislation does not apply to the fishing industry and that the responsibility of TCMS concerning operational safety in the fishing industry under the CSA has not been affected by the transfer of Part II of the CLC. 1.8.2 Nova Scotia Labour Law and Inspection According to the Nova Scotia Department of Justice, a fishing vessel falls within provincial jurisdiction, including workplace health and safety acts. Thus, the Occupational Health and Safety Act of Nova Scotia and the regulations made pursuant thereto applied to the work deck space aboard the S.S. BROTHERS. The regulatory requirements called for proper guards to be fitted on moving parts of the machinery to prevent injury to workers and for every lifting device to be thoroughly examined, at least annually, by a competent person and a record of such inspection maintained by the employer. The onus is: on the employer/supervisor of fishermen to take every reasonable precaution to ensure their safety and to ensure that regulations are complied with,[8] and on workers to take reasonable precautions to ensure the health and safety of themselves and other persons. The Act permits the Nova Scotia Department of Labour to conduct an inspection concerning health and safety of employees and includes the work deck space aboard fishing vessels. Inspections of the workplace by the Provincial Ministry of Labour are carried out as follows: shore-based industrial establishments are inspected at random (although certain industries and organizations may be targeted for more frequent inspection); fishing vessels are inspected on a reactive basis when an occurrence has taken place. No inspection was carried out on the S.S. BROTHERS. 1.8.3 Comparison of Provincial Statutes Provincial governments were contacted and, according to provincial authorities and a review of the provincial acts and regulations, it was revealed, inter alia, that: two provinces have sector-specific legislation that covers fishing operations and includes the deck workplace aboard fishing vessels. British Columbia has regulations in place while Newfoundland has regulations before the Legislative Assembly; all other provinces/territories have generic labour legislation. In different jurisdictions, provincial regulations apply either to all fishing vessels, or to certain fishing vessels, or to none at all; the enforcement mechanism for the generic provincial labour legislation varies extensively among provinces/territories and the primary instrument is self- enforcement. Some provinces also use the Workers' Compensation Board sanction system, and the courts, to achieve enforcement; British Columbia carries out inspections on a periodic basis; and the criteria used to determine the frequency of inspections vary among provinces/territories. With the exception of one province, which takes a pro-active approach, most provinces, for the most part, take a reactive approach to inspections. 1.8.4 Introduction of New Provincial Initiatives Currently fishing vessels are subject to inspection by a number of bodies, including TCMS, marine underwriters, the Department of Fisheries and Oceans, and provincial labour ministries. Some sector-specific provincial legislation (in place, or before the provincial legislature) dovetails with CSA regulations; however, to date, there is no formal agreement among provincial and federal authorities as to how this dovetailing is to take effect. Labour ministries in some provinces are taking initiatives to professionalize the fishing industry; these initiatives may include the following: A requirement that each fisherman maintain a record of sea service in a Fishermen's Booklet. An apprenticeship programme to train new fishermen entering the fishing industry. A diploma course in Professional Fishing (after a minimum sea service), including fishing technology, navigation safety and maintenance of vessel and gear. 1.9 Personnel Certification and History The skipper held a Fishing Master--Class IV certificate and had been involved in the fishery since 1971. He had been a skipper on different types of fishing vessels since 1983. Deck-hand No. 1 held a Fishing Master--Class IV certificate. He had served some ten years on different types of fishing vessels, some of which had similar deck machinery. Deck-hand No. 2 had been involved in the fishery for about five years on various types of fishing vessels including ones with similar deck machinery. 1.10 Accident Statistics[9] Following the occurrence, a review of the TSB records over the last five years revealed the following: more than half were attributable to falls, and 3 involved fishing gear and moving machinery. 32 percent involved fishing gear and moving machinery, and 19 percent were attributable to falls. 32 percent involved fishing gear and moving machinery, and 19 percent were attributable to falls.